In a November 5, 2017 article, The
New York Times harkened back to the 1977 Ms. magazine cover
depicting sexual harassment on its cover. The point was to illustrate the fact
that the 1977 Ms. cover is just as relevant today as it was then.

In 1986, more than 20 years after
the enactment of the Civil Rights Act of 1964, the U.S. Supreme Court in Meritor
Savings Bank v. Vinson first recognized workplace sexual harassment as a
form of unlawful sex discrimination. In 2017, more than 30 years after that
landmark decision, claims of sexual harassment are grabbing headlines again, at
a pace and intensity like never before. The fact is, since Vinson, the
law prohibiting sexual harassment has not changed drastically. Nor has the
underlying conduct that constitutes sex harassment. What has changed — or,
rather, evolved — is the sheer number of those who speak out, the attention
they are able to draw, and the cumulative power of their stories.

While the focus to date has been on
celebrities, public figures, and business leaders, it is more likely than not
that next up in this “speak out evolution” will be claims against and involving
those who do not enjoy the spotlight and (until a story is launched about them)
are outside the public eye. It is for this next phase of the speak out
evolution that employers must be prepared.

This article briefly discusses the
history of the speak out evolution, the Equal Employment Opportunity
Commission’s position and recommendation, and the steps employers should consider
taking now to ensure they have practices in place to prevent and address
harassment in the workplace.

The
Speak Out Evolution: 1975 to 2017

In 1975, a group of women at Cornell
University first coined the phrase “sexual harassment.” It all started when
Carmita Wood, a former employee of the University, filed a claim for
unemployment benefits after she resigned from her job because of unwanted
touching from her supervisor. Cornell challenged Wood’s claim for unemployment
benefits, maintaining that she quit for “personal reasons.” In response, Wood,
together with activists at the University, formed Working Women United.
The group organized a campus rally to speak out about sexual harassment. It was
the first rally of its kind and drew national media attention. At this Speak
Out event, working women attended in person and shared their experiences of
sexual harassment in the workplace, exposing the fact that the problem extended
far beyond the university setting. The press coverage of the rally propelled
many women to speak out against sexual harassment. This culminated more than 10
years later in Vinson. The Supreme Court made clear that workplace
sexual harassment is a form of illegal employment discrimination prohibited by
Title VII of the Civil Rights Act.

Five years later, in 1991, with
perhaps the most visible sexual harassment “speak out” in American history,
Anita Hill testified about Supreme Court nominee Clarence Thomas at his
televised Senate confirmation hearing. Although Thomas denied Hill’s story and
eventually joined the Supreme Court, Hill’s decision to speak out had immediate
and lasting consequences. Her televised testimony undoubtedly reached far more
people than the in-person Speak Out rally or even the Ms. magazine cover
of 1977. Immediately after Hill’s testimony, for example, sexual-harassment
complaints filed with the EEOC dramatically increased. See Carol
Kleiman, Sex Harassment Claims On The Rise, Chicago Tribune, Mar. 7,
1992; EEOC Sexual Harassment Charge
Statistics.

Now, following the headlines from
the past few years on harassment and assault by public figures (e.g., Bill
Cosby and Elliott Spitzer), sexual harassment at work is once again in the
spotlight. In just the past few months, Harvey Weinstein was fired from his own
company because of allegations of sexual harassment and other famous
personalities and business leaders have been accused publicly on almost a daily
basis.

The conduct in which these
celebrities and business leaders are alleged to have engaged may differ at the
margins in terms of degrees of salaciousness and egregiousness, but the stories
are not markedly different from one another, or from those told by individuals
in the past. Likewise, the law also remains simple, clear, and largely
unchanged. What is different and new is that today’s stories beget more
stories, and their volume is amplified by social media.

In October 2017, actor Alyssa Milano
encouraged survivors of sexual harassment and assault to post publicly and
adopt a #MeToo status. Her goal was to raise global awareness about sexual
harassment. The #MeToo movement went viral. It embodies perhaps the most
significant metamorphosis of the speak out evolution to date and is a harbinger
of things to come.

Employers would be well-served to
anticipate that this speak out evolution will continue. More and more claims of
harassment, of all types, will be raised, and they are bound to extend far
beyond Hollywood and Silicon Valley to other businesses, organizations, and
individuals, whether or not they enjoy the spotlight. The time is now for
employers to prepare.

EEOC’s
Take: Problem is Not New and Training is Required

Recent EEOC statistics and
publications demonstrate that what may seem to some as new is hardly new at
all. From 2010 through 2016, the EEOC received more than 12,000 charges of
sex-based harassment each and every year. Nearly one-third of the approximately
90,000 charges received by the EEOC in fiscal year 2015 included an allegation
of workplace harassment.

The EEOC views workplace harassment
as such a pervasive issue that in 2015 an EEOC task force launched an 18-month
study. In 2016, the EEOC Select Task Force on the Study of Harassment in the Workplace
released a roughly 100-page report detailing findings on harassment in the
workplace. It concluded that “[t]hirty years after the U.S. Supreme Court held
in the landmark case of Meritor Savings Bank v. Vinson that workplace
harassment was an actionable form of discrimination prohibited by Title VII of
the Civil Rights Act of 1964, we conclude that we have come a far way since
that day, but sadly and too often still have far to go.”

The EEOC Task Force summarized its
conclusions as follows:

1.
Workplace Harassment Remains a
Persistent Problem

2.
Workplace Harassment Too Often Goes
Unreported

3.
There Is a Compelling Business Case
for Stopping and Preventing Harassment

4.
It Starts at the Top — Leadership
and Accountability are Critical

5.
Training Must Change

6.
New and Different Approaches to
Training Must Be Explored

7.
It’s On All of Us to Stop Workplace
Harassment

The bulk of the EEOC’s
recommendations for preventing harassment in the workplace focused on the need
for effective workplace training. In furtherance of that recommendation, in
October 2017, the EEOC announced that it would launch two new training programs
for employers: Leading for Respect (for supervisors and up) and Respect in the
Workplace (for all employees). The training programs will be conducted by EEOC
Training Institute staff on-site at the employer’s location. The EEOC’s
training follows its 2016 recommendation that employers should train employees
on what they should do, rather than on what they should not do.

What
Employers Should Do Now

With the increased focus on
workplace harassment, and the likelihood that additional claims will be raised
against additional employers, what should employers do today?

Employers should evaluate their
practices to ensure they maintain and implement preventive and remedial
measures that have been recommended by employment law practitioners, and
agencies like the EEOC, for years. These recommendations include:

1.
Maintaining robust policies
prohibiting all forms of harassment based on any protected class, including
sex, and ensuring such policies are compliant with federal and applicable state
law.

2.
Establishing and communicating a
clear reporting mechanism, which requires employees to report workplace
harassment and provides multiple avenues to bring such complaints.

4.
Training all employees
(supervisors and non-supervisors) on discrimination, harassment, reporting, and
retaliation, with a focus on what employees should do and not only on
what they should not.

5.
Confirming the training program
meets requirements in states (e.g., California, Maine, and Connecticut)
where harassment training is mandated.

6.
Investigating all allegations of
harassment quickly and thoroughly and taking prompt remedial action when
necessary.

7.
Holding accountable all managers,
not just human resources or legal departments, for abiding by and enforcing the
organization’s policies and practices.

Now, more than ever, employers must
communicate to all levels of their organizations that inappropriate conduct
(whether it amounts to unlawful harassment or not) is more than likely to
result in disciplinary action, up to and including termination of employment.
This means that employers should examine closely their training strategy and
ensure that they provide regular education to both supervisors and employees,
using real examples, as well as strategies for when they witness or are subject
to harassment at work. The training should emphasize that supervisors must
understand how to handle and escalate harassment claims, be accountable for
their actions, and take ownership for creating and maintaining a
harassment-free workplace.

Moreover, human resources, legal,
and employee relations professionals should be trained in conducting thorough
and effective investigations and taking appropriate remedial action against
those who perpetrate harassment and those who knowingly permit its occurrence.
A failure to take these measures — and allowing a culture of harassment to
continue — can have dire consequences, not the least of which are potentially
crippling punitive damages awards and debilitating negative publicity.

Attorneys at Jackson Lewis have
focused on the importance of prevention since the firm was founded in 1958 and
have trained thousands of employees on anti-harassment, anti-discrimination,
and anti-retaliation principles. Employers with questions should contact a
Jackson Lewis attorney with whom they regularly work or the authors of this
publication.

The
recent influx of harassment claims will be a main topic at Jackson Lewis’
Corporate Counsel Conference (March 14-16, 2018, in Miami), which will feature
a keynote presentation by Anita Hill. Don’t miss it.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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